Monthly Archives: April 2018

BBA Files Amicus Brief in Litigation Arising from Amherst Drug Lab Scandal

Earlier this week, the Boston Bar Association filed an amicus brief in the case of Committee for Public Counsel Services v. Attorney General (SJC-12471), the matter arising from the Amherst Drug Lab Scandal, where it was discovered that thousands of drug tests were compromised by the misconduct of state chemist Sonja Farak. The scandal grew, however, when it was later revealed that the response to the misconduct once discovered was also tainted by serious prosecutorial misconduct. Since then, thousands of cases have been dismissed by the District Attorneys and Attorney General’s Office, but three remaining questions have been reserved and reported to the full Supreme Judicial Court.

One of those questions asks whether additional prophylactic measures are appropriate to address future cases involving widespread prosecutorial misconduct. The BBA thinks the answer to that question is yes. In an amicus brief filed earlier this week, and drafted by Amicus Committee Co-Chairs David Siegel of New England Law | Boston and Elizabeth Ritvo of Brown Rudnick LLP, we explain why the question deserves an affirmative response and offer the court a suggestion for one such prophylactic measure that would help to prevent the types of misconduct and improve the responses to the discovery of this conduct, mitigating the harms of any future scandals like those that have plagued the Massachusetts criminal justice system in recent years.

As Ritvo notes in the BBA’s statement on the brief:

The misconduct here undermines the integrity of the entire justice system, and now is the time to move beyond the ”few bad apples” narrative and establish systemic reforms that will help to formalize and improve the much-needed mechanisms to prevent and respond to these crises.

Keep reading to learn more about the CPCS v. AG case, the BBA’s history on these issues, and the content of our amicus brief.

Case Background

In September 2017, the American Civil Liberties Union of Massachusetts (ACLUM), the Committee for Public Counsel Services (CPCS) and the law firm Fick and Marx LLP, filed a petition arguing that the misconduct at issue in the case  warrants dismissal with prejudice for all “Farak Defendants”  , after it was found that she had stolen and tampered with drug samples and tested evidence while under the influence of drugs for nine years.

Unlike the Annie Dookhan scandal from the Hinton Lab that was at issue in the Bridgeman cases, dismissal was also warranted based on a second type of egregious government misconduct:  the failure of two lawyers in the Massachusetts Attorney General’s Office  to disclose all relevant, exculpatory evidence in the matter, which delayed and impeded the determination of the full scope of this misconduct, and the misleading of the defense attorneys and the Superior Court judge handling the consolidated lab cases. The principal issue in the consolidated cases by defendants seeking post-conviction relief (withdrawal of their guilty pleas, dismissal or new trials) was the period of Farak’s misconduct.

In December 2016, the Superior Court scheduled a hearing on the timing and scope of Farak’s misconduct and the reasons for the AGO’s failure to disclose exculpatory evidence. Superior Court Justice Thomas Carey found:

Despite the drug lab defendants’ diligent discovery efforts, [Assistant Attorneys General] Kaczmarek and Foster managed to withhold the mental health worksheets through deception. They tampered with the fair administration of justice by deceiving [the court] and engaging in a pattern calculated to interfere with the court’s ability impartially to adjust discovery in the drug lab cases and to learn the scope of Farak’s misconduct.

Since that decision, the 11 District Attorney’s (DA) offices have dismissed thousands of cases, and earlier this month Justice Frank Gaziano finalized these dismissals and issued an order vacating an estimated 11,000 convictions in 7,7000 criminal cases. In January, Justice Gaziano reserved and reported questions for full bench review, including the third question, which became the focus of the BBA brief:

whether the record in this case supports the court’s adoption of additional prophylactic measures to address future cases involving widespread prosecutorial misconduct, and whether the court would adopt any such measures in this case.

Petitioners ACLU and CPCS briefed the questions posed in the Reservation and Report in March, and in relation to the third question argued that the court should issue “standing orders on the responsible handling of government misconduct and exculpatory evidence” and “order monetary sanctions responsive to the AGO’s misconduct.” Specifically, the Petitioners ask for three standing orders:

  1. Standing Bridgeman Order: This first order would formalize the protocols the created in the Bridgeman litigation, requiring, among other things, the prosecutor’s office to supply a list of relevant cases to the Chief Justice of the Trial Court and CPCS when a prosecutor knows or has reason to believe that misconduct occurred in one or more cases.
  2. Standing Cotto Order: This proposed order would govern criminal cases that a government attorney may have tainted, whether that discovery is made before or after a conviction and require the attorney, or the attorney’s agency, to notify the Chief Justice of the Trial Court, CPCS, and the Bar Counsel’s office of the Board of Bar Overseers within thirty days when that attorney knows that the misconduct may have affected a criminal case.
  3. Standing Brady Order: The final standing order proposed calls upon the Court to require trial courts to issue an order governing prosecutors’ disclosure obligations in Brady v. Maryland, 373 U.S. 83 (1963) and Massachusetts law, setting disclosure deadlines, emphasizing the duty to disclose exculpatory evidence extends throughout the course of a case, and specifying sanctions for violating it.

In their recently filed reply brief, the AGO agrees that standing orders are an appropriate prophylactic measure in response to the third question, and even supports all three standing orders outlined in the Petitioner’s brief, but also posits that monetary sanctions are not warranted. The brief filed by the DAs also notes that monetary sanctions are not appropriate but departs from the AGO and argues that the proposed prophylactic measures are “not necessary, practicable, or appropriate where long-standing rules and clear guidance from this court provide the best measures to address any future occurrence of misconduct, should it arise.”

The parties will present their arguments to the full bench on May 8.

BBA Background

The BBA has a long history of advocating for reforms in line with our interests as articulated in the brief here: “to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair and efficient administration of justice by reducing the risk of widespread prosecutorial misconduct.”

Nearly a decade ago, the BBA Task Force to Prevent Wrongful Convictions produced the Report: “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.” That Report highlighted the Association’s continued interest in the development of measures that would improve the practices of prosecutors and defense attorneys and prevent wrongful convictions. Among other things, the Report specifically points to “police and prosecution failures to produce required discovery” and “inadequate defense counsel performance” as two of the most common sources of wrongful convictions.

Continuing these efforts, the BBA, in 2012, felt inspired and compelled to respond to the scandal unfolding at the Hinton Drug Lab, and established the Drug Lab Crisis Task Force to review the facts, identify lessons learned, and propose recommendations. The Task Force Report, released in 2014, made a number of recommendations, including an independent auditing function, with the authority to conduct full and complete investigations, where all forensic services employees could confidentially report concerns about the internal operations or coworkers’ performance.

Two years later, the BBA submitted an amicus brief in the Bridgeman litigation arguing for dismissal of all those cases where Dookhan served as the primary or secondary chemist and urging the Court to exercise its powers of general superintendence to “mitigate the impact of the Commonwealth’s ‘egregious’ misconduct and…reaffirm the commitment of the judicial system to due process and fairness.” You can read more about that brief here.

The Brief

The BBA brief in this case highlights this past work and our continued interests in these areas as it calls for the court to adopt forward-looking measures. As put by BBA President Mark Smith of Laredo & Smith LLP:

Access to justice is at the core of the BBA’s mission, and we are proud to continue our advocacy on matters relating to widespread misconduct and wrongful convictions. We hope the Court will consider the measures proposed in the brief and take steps to ensure the Commonwealth has a procedure in place that will ensure access to a fair and efficient justice system.

The BBA brief echoes support for the position of the Petitioners and Respondent Attorney General mentioned above that the Court issue standing orders on the Bridgeman protocol, the disclosure obligations for lawyer misconduct that may have tainted a case, and the disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Massachusetts law. However, it additionally suggest that the Court adopt a standing order that establishes a mandatory obligation to report for every prosecutor who, at any point, gains knowledge of, or credible information of, misconduct by any lawyer or non-lawyer on the prosecution team.

The brief notes that mandatory reporting is important to promoting accountability and mitigating the scope of the damage caused by any misconduct. The creation of a record also allows for patterns and repeated misconduct to be revealed and addressed sooner rather than later. Specifically, the brief argues that such a standing order could require:

  • Any intentional misconduct by any non-lawyer agent of the prosecution team be promptly reported to the supervisory prosecutor.
  • Any repeated intentional misconduct by non-lawyers, and any lawyer misconduct, should be made to a statewide power of sufficient authority (like the Chief Justice of the Trial Court or a specially designated judicial officer, in addition to the supervisory prosecutor).

While any lawyer misconduct or repeated intentional non-lawyer misconduct should be made known to a judge in the case, the reporting requirements would also apply to those matters where a case does not yet exist. Finally, the brief makes clear that any reports, whether to a supervisory prosecutor or a central judicial authority or judicial officer, should be made in writing.

The Brief further addresses just why mandatory reporting is so necessary in matters like those at issue in this case, first illuminating that such reporting is “a consistent feature of the modern administrative state” (quoting In Re Grand Jury Investigation, 437 Mass. 240, 355 (2002)). Mandatory reporting is used when the interests at stake are high, and identifying misconduct like that displayed here is a critical matter of ensuring due process and the integrity of the criminal justice system. In addition, mandatory reporting is needed when the consequences of non-discovery could be sweeping, and here, it may impact thousands of cases and involve, as described by Judge Carey, “a problem of systemic magnitude.” Finally, it’s especially essential when the observer may not be in an independent or neutral position from which to determine the extent of the activity.

The brief additionally hones in on the standards that should trigger the obligation to report, first noting that: the “knowledge of” or “credible information of” standard is familiar to the court through other rules, including SJC Rule 3:09 of the Massachusetts Code of Judicial Conduct and SJC Rule 3:07 of the Massachusetts Rules of Professional Conduct. In addition, the brief notes that it is essential the obligation operates with minimum amount of discretion, in line with MRPC 3.8, and without regard to materiality.

Notably, the brief makes clear that the reporting obligation should apply regardless of whether a specific case is identified or pending, as it is equally important that such misconduct is addressed before a conviction or even a charge is brought. This is the exact point where system-wide catastrophes like those in the Amherst and Hinton Labs, can be prevented without denying and delaying justice for thousands of Massachusetts residents.

And finally, the brief clarifies that instances of repeated intentional misconduct by a non-lawyer agent, or any lawyer, should be reported to a central judicial authority or judicial officer. Each of the recent examples of systemic misconduct resulted in the designation of one or more judges to handle the similar questions arising in multiple cases, and having one single authority designated in advance to receive the report would simplify and clarify this process. In addition, it would more quickly move it outside the wholly adversarial context, if a particular case already exists, into a framework overseen by a neutral body.

As summarized by Professor Siegel in the statement on the brief:

We have seen in recent years the dire consequences of misconduct that goes unreported for too long. The fair administration of justice requires prompt discovery and response, and a standing order that establishes an obligation for disclosure would help to minimize the risk of the sweeping injustices thousands endured following the Amherst and Hinton Drug Lab scandals.

A massive thanks goes out to our Amicus Committee for making the brief possible, and especially to David Siegel and Elizabeth Ritvo for their drafting efforts. Continue to watch this space for more updates as the case proceeds.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Fifty Years After MLK: Civil Rights in a Changing Landscape Recap



Guest Post: Jack Caplan is the current Lawyer Referral Service Co-op Intern at the BBA. Jack is a sophomore at Northeastern University studying Politics, Philosophy, and Economics.


Last Thursday, April 19th, on the heels of the 50th anniversary of the assassination of Dr. Martin Luther King, Jr., some of Boston’s most prominent champions of civil rights gathered at the BBA for an evening which simultaneously looked back on where the country has been, and looked forward to where it can go.

The all-star lineup consisted of:

Rahsaan Hall, the current Director of the ACLU’s Racial Justice Program, was moderator for the evening.  He also manages the “What a Difference a DA Makes” campaign, which seeks to educate the public about how much positive influence a District Attorney can have on their community, lessons he learned in part during his time as an Assistant District Attorney in Suffolk County.

The Honorable Geraldine Hines (Ret.) kicked off her career spearheading the creation of a Department of Afro-American Studies at the University of Wisconsin-Madison, a movement which triggered the National Guard to be deployed at the time, but which later earned her the Distinguished Alumni Award.  After several decades doing civil rights litigation, she was appointed Associate Justice of the Superior Court, and in 2014 became the first black woman to sit on the Supreme Judicial Court.

Barbara Arnwine, the longtime Executive Director of the Lawyers’ Committee for Civil Rights Under Law, has led a long and robust career fighting for civil rights in the US and abroad.  Focusing much of her work on voting rights, Arnwine helped to create the 2011 “Map of Shame” which shows disenfranchisement efforts across the country.

Segun Idowu has spent most of his life in Boston. A graduate of Boston Latin, Segun went to Morehouse College before returning back home.  In 2014 Segun co-founded the Boston Police Camera Action Team and played a key role in establishing the police body camera system that is expected to be made permanent by the Boston Police Department.  Additionally, Segun is on the leadership team for the Boston NAACP, and is currently running to be the State Representative for the Commonwealth’s 14th District, covering Hyde Park, Roslindale, and West Roxbury.

Iván Espinoza-Madrigal has worked for a number of civil rights-oriented organizations including Lambda Legal and MALDEF, and is currently the Executive Director of the Lawyers’ Committee for Civil Rights and Economic Justice, an organization leading the charge on a variety of civil rights matters across the Boston area.  He’s been honored as one of the city’s 100 most Influential People of Color, and one of the Best LGBTQ Lawyers under 40, among many other accolades. Last year, he was honored at the 8th Annual BBA Beacon Award.

Panelists kicked things off with a reflection on the impact that Dr. King had on them.  For some, like Segun, it was personal.  He told a packed room how his grandfather was a good friend of King’s and passed down many of his advocacy tactics and strategies, which would eventually become a roadmap for Segun’s police camera advocacy.  For Arnwine, it was all about making sure that the legacy of Dr. King is a living legacy – one that we continue through persistent advocacy for change.  Having lived all over the country, Arnwine discussed how she’s been bringing that fight across multiple states and regions, and how she’s seen that the so-called “problems of the South” aren’t just problems in the South, but up North as well.

Reflecting next on how the racial landscape has evolved in Boston over their lives, panelists provided broad reflections about how the city has changed.  Justice Hines noted how although the daily outright violence that was seen just a few decades ago, such as during the anti-desegregation bussing riots of the mid-‘70s, has largely disappeared, racial injustice has manifested itself in other ways.  Chief among them has been how the city has gone about new development. Multiple neighborhoods have seen their communities completely altered by the introduction of new businesses and housing developments which are pricier than what the neighborhood is more used to.  Consequently, many long-time residents are slowly priced-out of the neighborhoods that they’ve built, and called home for decades.  Panelists had a vibrant discussion on the injustice inherent in this practice, and the potential for some high-impact litigation in coming years.

Dr. King’s legacy has had a deep impact on the efforts of each panelist – both personally and professionally.  Justice Hines spoke bluntly about how although no one can do everything, everyone should do something – participate in demonstrations, speak out against injustice, and make sure to vote whenever possible, since we all carry a personal responsibility to better society.  And, as attorneys specifically, Executive Director Espinoza-Madrigal emphasized the professional responsibility to carry these fights from the streets to the courts.  It’s crucial that lawyers don’t try and pick “winners” and pit marginalized groups against one another in the fight for equal recognition and access to resources, but rather continue to add seats to an ever-growing table.

The best way to honor the unparalleled legacy of Martin Luther King, Jr., our distinguished panel seemed to agree, is to make sure that his legacy doesn’t exist only in abstraction, but rather in a way that keeps society moving forward along a path that is completely and unequivocally towards justice.

Representing the BBA in DC at ABA Day 2018

Each year, representatives from state and local bar associations across the US gather in Washington, DC, for a couple of days of advocacy on behalf of some of the American Bar Association’s top priorities.  Last week, BBA President Mark Smith, of Laredo & Smith, and President-Elect Jonathan Albano, of Morgan Lewis & Bockius LLP, joined their counterparts from the Massachusetts Bar AssociationChris Sullivan and Chris Kenney, respectively—on another whirlwind tour of the Capitol, visiting the offices of 10 of the Commonwealth’s 11 US Senators and Representatives as part of ABA Day.

Although our group had to split up in order to fit all those meetings in, we did get to sit down with both our Senators, Elizabeth Warren and Ed Markey, and Representatives Katherine Clark, Bill Keating, Joe Kennedy, and Jim McGovern.  We also saw staffers for Congressmen Mike Capuano, Steve Lynch, Seth Moulton, and Richard Neal.

This year, we focused our presentations on four main topics:

  • LSC funding

As always, the federal appropriation for civil legal aid, through the Legal Services Corporation (LSC), was at the top of our list.  LSC is the largest source of funding for providers nationwide: There is not a county in the US that is not covered by an LSC-funded agency, and here in Massachusetts, they fund the Volunteer Lawyers Project, South Coastal Counties Legal Services, Northeast Legal Aid, and Community Legal Aid—for a total of about $5.5 million this year.

The $1.3 trillion budget deal reached in Congress earlier this year increased LSC’s line-item, for the first time in years, from $385 million to $410 million.  Even at that level, however, legal-services providers remain woefully under-resourced.  Our request, on behalf of the ABA, was for an increase to $482 million in the coming fiscal year.  That would at least get LSC, and its grantees, back to where they were nine years ago.

LSC enjoys wide and deep bipartisan support in Congress—evidenced by that $25 million increase they received for the current fiscal year, in the face of a White House proposal to defund and shut down LSC’s operations entirely—and our delegation is unanimous in their strong support.  Yet the fiscal climate in DC makes almost any funding increase a challenge, no matter how worthy the cause.


  • Criminal-justice reform

This issue was on the ABA’s agenda two years ago, when momentum finally seemed to be growing for bipartisan agreement in Congress.  Since the 2016 election, though, there has been little action, if any, on this front, and the ABA didn’t make it one of their two priorities for ABA Day 2018.  But we chose to add the topic because we believe Massachusetts’ recently-enacted law can be a model for federal action—especially given the overwhelming support it had in the Legislature from both parties.

Our message to the elected officials was that Congress should take a comprehensive approach to reform, including bills that have ABA support on bail reform, sentencing, and juvenile justice.  Taking a piece-meal approach, to first tackle the low-hanging fruit would risk prematurely ending the debate for the foreseeable future by taking the heat off Congress.  What we heard back was that there may be an appetite to pick this issue up again after this fall’s mid-term elections—depending on the outcome.


  • Public Service Loan Forgiveness

In 2007, the federal government created the Public Service Loan Forgiveness program, designed to assist with student-loan repayment for those who work at least 10 years at a qualified public-service job.  Now, just as the program is beginning to pay back public-sector/non-profit employees who signed up at the outset and have been making timely payments ever since, it is under threat of cut-backs or even elimination.

Lawyers—who graduate with average debts of $88,000 for public schools or $122,000 for private schools—face some of the most-daunting challenges in considering whether to start their careers in public service.  But our case for the program extends as well to other professionals, such as teachers, first responders, and social workers.  And the program benefits not only those individuals, but their employers, too, since it can be difficult to attract talented applicants to these relatively low-paying jobs.  Of course, society as a whole stands to gain from measures such as this, to encourage students to acquire needed skills and then apply them in public service.


  • Immigration Orientation Program

This fourth item was a last-minute addition to our agenda, after the White House announced, just the previous evening, the suspension of a successful program to help applicants navigate the complexities of our federal immigration system.  The program helps to streamline the process and has demonstrated its cost-effectiveness, with the most-recent analysis finding a saving of $17 million as a result.  Nevertheless, as we heard from Rep. Kennedy, anything related to immigration is toxic these days in Washington.


A separate part of ABA Day involves the presentation of the Justice Awards, to recognize the work of members of Congress in advancing issues of critical importance to the ABA and the administration of justice.  This year’s event could only be a bit of a let-down from last year, when our own Rep. Joe Kennedy was one of the recipients, but it was still a treat to hear from House Democratic Leader Nancy Pelosi and Pennsylvania freshman Rep. Brian Fitzpatrick.  Leader Pelosi, the former Speaker, was introduced as the highest-ranking female elected official in American history, but said she couldn’t wait to lose that distinction.  She went on to talk about the importance of lawyers in our system, and about her pride that her daughter is one herself.

Rep. Fitzpatrick, a former FBI agent, joked (we think) that he’d left a job where he knew his colleagues would take a bullet for him for one where the opposite is true.  He also tied his belief in civil legal aid for the poor to his Roman Catholic faith, quoting Jesus saying, “Whatever you do for the least of these, you do for me.”  (Although they could not attend the award ceremony, Senate Majority Whip John Cornyn of Texas and California Senator Dianne Feinstein were also honored.)

We’ve said this before, but it bears repeating: We are blessed in Massachusetts to be represented by a delegation that shares these priorities—and, especially, understands the importance of civil legal aid.  Unlike attendees from other states, we were there at least as much to thank those we met with for their continued support as to persuade them on our issues.

—Michael Avitzur
Government Relations Director
Boston Bar Association



Massachusetts Legislature Passes Sweeping Criminal Justice Reforms

This week, the State Legislature passed the most-sweeping reforms of the Massachusetts criminal-justice system in decades.  The bill (technically, two bills) is now before the Governor, who has ten days to decide whether to sign the legislation into law, veto it, or send it back to the Legislature with recommended changes.

The BBA, which has advocated for changes in several key areas, will be sending a letter to the Governor, urging him to sign the bill into law—in particular, those reform measures that were recommended by our own criminal-justice working group in their No Time to Wait report last October.

Here are some of the main provisions in the bill that the BBA had proposed:

  1. Increase opportunities for pre-trial diversion for more defendants
  • Expands the eligibility criteria for pre-trial diversion to include a wider population of offenders.
  • Amends the CORI laws to permit the removal of offender’s successful completion of pretrial diversion from publicly accessible CORI reports.

2. Adopt significant reforms to the Massachusetts cash bail system

  • Requires that, generally, cash bail should not be ordered unless a defendant can in fact afford to pay the bail set.
  • Follows the emerging national model of pre-trial services reform by:
    • developing programs to minimize unnecessary pretrial detention,
    • reminding defendants of upcoming court dates using modern messaging approaches, and
    • requiring annual reports with aggregated data.
  1. Repeal mandatory minimum sentences, particularly for drug crimes
  • Repeals mandatory minimums for seven non-violent offenses.
  • Limits applicability of the school-zone law, and its mandatory minimum, to cases involving guns/violence/threats, kingpins, or minors.
  1. Ensure that ordering payment of multiple fines and fees does not effectively criminalize poverty
  • Makes more fees waivable and standardizes waiver language across fees.
  • Eliminates:
    • indigent counsel fee for defendants under 18 years of age,
    • parole fees for the first year, and probation fees for the first six months, after release from incarceration, and
    • counsel fees for cases of non-payment.
  • Bars incarceration solely for non-payment of money, or if such a person is not represented by counsel for the commitment proceeding and allows for alternatives to incarceration solely for non-payment of a fine.
  • Increases the monetary credit with which people can “work off” their criminal justice debt when confined for non-payment from $30 to $90 per day
  1. Reassess CORI laws
  • Reduce the time period for defendants to wait to seal records of conviction, from 10 years to 7 years for felonies, and from 5 years to 3 years for misdemeanors.
  • Allows expungement of non-serious cases up to age 21.
  • Require Courts and the Probation Department to seal automatically cases dismissed prior to arraignment or pursuant to a statutory diversion program.

In addition, the bill contains language creating a stream-lined process for post-conviction relief for individuals that were arrested and convicted of certain offenses while under the control of a trafficker, which the BBA separately endorsed.

We ask you to join the BBA in urging the Governor to sign the bill and preserve these much-needed evidence-based reforms, to make our justice system fairer and more effective.

Meanwhile, even if the bill is enacted, our work in this field is not finished: You will note that, in spite of the BBA’s long-time opposition to mandatory minimums in general—and our report’s proposal to at least start by eliminating all such sentences for drug offenses—the bill preserves those misguided provisions for higher-level crimes.  We will continue to support efforts to go further toward full repeal in future legislative sessions.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Files Amicus Brief in U.S. v. Brian Joyce

This week, the BBA filed an amicus brief in the case of U.S. v. Brian Joyce on the issue of the government’s motion to disqualify Joyce’s defense counsel. This move has generated a great deal of alarm in the legal community for its potential to significantly interfere with the attorney-client relationship, a bedrock of the fair administration of justice.

Drafted by President-Elect Jonathan Albano, of Morgan Lewis, the BBA brief argues that the Government’s motion to disqualify defense counsel should be denied on both Sixth Amendment and First Amendment grounds, honing in specifically on the First Amendment issues of the right to petition the government and an attorney’s right to speak publicly on behalf of a client.

Case Background

In December 2017, former state senator Brian Joyce was indicted on federal charges for using his office for personal gain, including racketeering, honest services fraud, extortion under color of official right, and conspiracy to defraud the IRS. In February 2018, the government moved to disqualify Joyce’s defense counsel, Howard Cooper, who has served as Joyce’s counsel for a number of years, including during the Massachusetts State Ethics Commission’s investigation, the U.S. Attorney’s Office’s investigation, and in the current case before the District Court.

The government argues that Joyce used Cooper to make several material and false representations to the Ethics Commission and the press, which Joyce intentionally meant to conceal his ongoing criminal conduct that is now the subject of the criminal charges. As a result, the government claims that Cooper has become entangled in Joyce’s cover-up and the perpetuation of the conduct, making him a percipient witness in the case, and requiring his disqualification. The government does not put forth any evidence that Cooper knew the information relayed to him by Joyce was false.

The Brief

The brief begins by noting the BBA’s “strong interest in protecting the sanctity of the attorney-client relationship and in safeguarding the constitutional right of lawyers to advocate on behalf of their clients.” Indeed, we have a long history, stretching back decades, of speaking out on these issues as intervenor and amici.

Over twenty years ago, we intervened at the District Court level and later participated as amici when it made its way to the First Circuit Court of Appeals, in the case of U.S. v. Klubock, 832 F.2d 649 (1986). There, we voiced our support for the ability of a district court to use its supervisory powers to adopt a local rule that would require prosecutors to seek prior judicial approval before serving a grand jury subpoena upon an attorney, for the purpose of obtaining evidence about the attorney’s clients. The First Circuit ultimately agreed that adoption of such a rule was a “sound use” of the court’s supervisory powers, noting the implication of due process and the right to counsel of choice under the Sixth Amendment.

Since then, we drafted and joined many briefs that address the importance of attorney-client privilege and the First and Sixth Amendment rights implicated in the attorney-client relationship, including, most recently, a brief in Commonwealth v. Wade. There, we expressed grave concern when a trial court interpretation of a statue would have required counsel to reveal confidential communications protected by the attorney-client privilege. In this brief we noted that “[t]he attorney-client privilege is critical to the proper functioning of the criminal justice system in Massachusetts. Safeguarding the attorney-client privilege is thus a vital concern for the BBA.”

Given this long history, we felt it necessary to respond to the government’s motion to disqualify Joyce in this case, which, as mentioned, has caused a great deal of alarm raised serious concerns across the legal community in recent weeks. A brief filed by the Massachusetts Academy of Criminal Defense Lawyers, the Massachusetts Bar Association, and the ACLU of Massachusetts, and others expounds on the Sixth Amendment right to counsel implications of the matter. Our brief acknowledges these concerns and hones in on another important right implicated: the First Amendment right of all attorneys to petition the government and to speak publicly on behalf of clients.

You can read the full brief here.

To summarize, the BBA brief posits that the government’s contention that defense counsel in a criminal prosecution can be disqualified, and attorney-client privilege lost, if the lawyer makes allegedly false statement in a submission to a state agency even in the absence of evidence that the lawyer knew the statements were false when made, would violate well-established constitutional protections of the right to petition the government. The First Amendment provides that “Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances,” a right commonly exercised through counsel.

The defense counsel’s presentation of his client’s defense to the Ethics Commission was a protected form of petitioning activity, a protection that extends to statements that are not made with knowledge of falsity, as it is recognized that some false statements will be inevitably covered in order to protect speech that matters. The government’s theory, however, would require that defense counsel guarantee the truth of factual assertions from the client, which would raise serious barriers to the attorney-client privilege and strain the right to petition. The brief provides:

 …the free flow of information between defense counsel and the government promotes the administration of justice. Imposing significant new barriers to pre-charging advocacy – such as the fear that an innocent misstatement will result in disqualification – would be both unconstitutional and contrary to the public interest.

In sum, without proof that a lawyer knowingly shared false information on behalf of the client, the Petition Clause of the First Amendment does not allow for the government to disqualify counsel solely because they repeat the defense.

The brief also addresses the First Amendment protections of a lawyer’s statement to the press on behalf of a client, as the government’s motion to disqualify also relies on the defense counsel’s allegedly false statements to a newspaper reporter investigating Joyce’ s conduct. Here, the brief highlights the Supreme Court case Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), where the Court held the First Amendment protects attorney speech about pending cases and can only be punished upon a showing that the speech will cause a substantial likelihood of materially prejudicing an adjudicatory proceeding. As a result, without evidence that defense counsel knew the information provided was false, the disqualification of counsel for publicly disclosing a client’s position on a matter of public concern would infringe on the First Amendment protections afforded attorney’s statements to the press.

We are grateful to have had the opportunity to weigh in on this matter, so critical to the BBA as an association of attorneys. And we are especially grateful of the significant efforts put forth by drafter Jon Albano, who had this to say about the brief:

We believe the government’s motion threatens the constitutionally protected right of a lawyer to present a client’s defense to courts and to government agencies. A lawyer should not be disqualified for presenting a client’s side of a case when there is no evidence that the lawyer knew the client was not telling the truth.

We will be following the disposition of the motion closely and will update this space with new developments. In the meantime, click here to learn more about our past amicus advocacy.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Submits Letter in Response to New Policy on Prison Visits

Last month, BBA President Mark Smith submitted a letter to the Executive Office of Public Safety and Security (EOPSS) expressing concerns with the new Department of Corrections policy on prisoner visits currently under consideration. The policy would require visitors to be approved and limit the number of individuals allowed to visit, with those in maximum security being permitted to have no more than five names on their preapproved visitors list, inmates in medium security being permitted to have no more than eight, and inmates in minimum security being permitted to have no more than ten. Incarcerated individuals will be allowed to revise their visiting list twice each year.

The letter expresses an understanding of EOPSS’ efforts to improve safety and reduce substance use in prison and jails, where substance use and addiction rates remain high. However, it also highlights that “[r]esearch clearly indicates that prisoners benefit substantially from the ability to maintain familial, social, and community ties while incarcerated, and thus the opportunity to visit with relatives, friends, community leaders, and others is critical to improving their chances to successfully and productively re-integrate into society upon release.”  The letter concludes by seeking a few answers, including the rationale behind the decision to limit the opportunity to change a visitor list to only twice a year, the data and research that was the basis of the new policy, and the specific additional benefits the new policy achieves above the current mandatory search policies.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association